Week 16: Part II Forms of Liability

Question 1

Which Act provides for Occupier Liability

Answer 1

Occupiers’ Liability (Scotland) Act 1960

Question 2

What does s 1(1). of the OLSA provide for?

Answer 2

Act applies to those who fail to take due care to prevent those who enter the premises for encountering known dangers.

Question 3

Does the OLSA apply to any fixed or moveable structure, including any vessel, vehicle or aircraft, and to persons entering thereon.

Answer 3

Yes.

See s 1(3)(a).

Question 4

Does the OLSA apply to those who have never entered the property?

Answer 4

Yes.

See s 1(3)(b).

Question 5

Does the OLSA apply to those who have willingly accepted the risk imposed as his?

Answer 5

No.

See s2(3).

Question 6

McDyer v The Celtic and Athletic Company Limited 2000 SLT 736

Answer 6

• Hit by a piece of wood, when spectating a sporting event
• It was found that both the event organisers and Celtic Football club were to be held liable

Question 7

Res Ipsa Loquitor

Answer 7

‘The facts speak for themselves’

Question 8

Scott v London and St Katherine’s docks (1865)

Answer 8

Scott v London and St Katherine’s docks (1865)
But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
* Dock worker in London
* Debris from a crane fell on him
* Had proper care been taken would this have occurred?

Question 9

What are the three elements of occupier’s liability?

Answer 9

1. The defender had sole control of the offending thing
2. That the incident would not occurred had due care been taken
   a. Some things just are dangerous (cliffs, dangerous waters etc.)
3. No explanation given by the defenders as to how the incident happened

Question 10

Ward v Tesco Stores Ltd [1976]

Answer 10

• Slipping on yoghurt
• There was an insufficient system for dealing with spillages, therefore Tesco could be found liable
• Contrasts the ASDA case where there was found to be a stellar cleaning schedule

Question 11

Dobson v ASDA Stores Ltd [2002] CLY 358

Answer 11

• Slipping on cherries, case failed
• Cleaning occurred frequently
• Held that considering cleaning had occurred only 10 minutes before the incident, the defendants (ASDA), they could not be considered liable.

Question 12

Define an occupier.

Answer 12

Someone who occupies or controls;
* Land
* Any other premises
* Vessel
* Vehicle
* Aircraft
* The persons entering therein

See s1(1) to (3)(a)

Question 13

Dawson v Page 2003

Answer 13

• A woman’s home was being worked on
• She was held to be liable for an injury because she was the legal owner of the property

Question 14

Malaco v Littlewoods organisation Ltd [1987] AC 241

Answer 14

Principle established: Legal control over a property

• Owners were considered not liable because it was not reasonably contemplatable that they would have to protect from the actions of trespassers

Question 15

Who is the positive duty on in occupiers liability law?

Answer 15

Owner.

Question 16

Who has the onus of proof.

Answer 16

Pursuer.

Question 17

• Titchener v British Railways Board 1984 SC (HL) 34

Answer 17

o Teenage boy was killed by a train and girlfriend injured
o Climbed through the fence to cross the railway line
o It was declared that the railway operator had taken reasonable steps to prevent injury
o It was also made clear that a teenager is expected to know the dangers associated with railway lines

Question 18

McGuffie v Forth Valley Health Board 1991 SLT 231

Answer 18

• Slipping on snow
• Failed on appeal, because reasonable period was unclear

Question 19

Porter v Strathclyde Regional Council 1991

Answer 19

Slipping on food

Wrongdoer did not have a sufficient system for cleaning up spillages

Held to be a breach of the employer’s statutory duty

Question 20

Taylor v Glasgow Corporation 1922

Answer 20

• Child eats poisonous berry.
• No signage, fencing or any other deterrent therefore GC found to be in breach of their duty of care

Question 21

Tomlinson v Congleton [2004]

Answer 21

• Swimming in a lake
• Man broke his neck when swimming in a lake
• Signage prohibiting swimming was clear
• They had taken reasonable steps to deter that activity

Question 22

Micheal Leonard v The Loch Lomond & The Trossachs National Park Authority [2014]

Answer 22

• Boy injured when walking down a hill
• Park authority did not breach their duty of care as dangers were not concealed and therefore caution on the behalf of the pursuer should have been taken

Question 23

McKevitt v National trust for Scotland 2018

Answer 23

• Fell over a large stone while walking
• Despite her not noticing the stone the trust could not be found liable
• Unless there are unusual or concealed dangers

Question 24

Volenti non fit injuria

Answer 24

You accept the risks you consent to

Question 25

Taylor Neilson Barratt v Spice lounge (Scotland) ltd 2017

Answer 25

* Partial defence - court will change award of damages * ‘You were 30% at fault therefore award will be decreased by that fraction’ * Women fell over round the back of the resteraunts as they used the alleyway for deliveries, however the duty of care had not been breached. - Contributory negligence as she could have gone another route, with minor inconvenience to her journey.

Question 26

What was the test established in Various Claimants v The Institute of Brothers Christian Schools [2012]

Answer 26

1. There must be a relationship between the defender and the wrongdoer 2. The relationship between the defender and the wrongdoer must be connected to their act/omission - ‘in the course of employment’

Question 27

What test is used to establish whether the wrong doer was acting under a contract of employment as opposed to a contract of service?

Answer 27

The Control Test. See: Cox v Ministry of Justice

Question 28

Identify the three features of the control test, as outlined in Cox v Ministry of Justice.

Answer 28

1. The wrongdoer was acting on behalf of the defender 2. The wrongdoer’s activity is connected to the defender’s business 3. By employing the wrongdoer for the activity, the defender has created the risk of the delict being committed.

Question 29

Principle established in Kerby v National Coal Board 1958

Answer 29

'In the course of employment'

Question 30

What was the test established in Kerby v National Coal Board?

Answer 30

1. Did the employer authorise the act? 2. Was the employee authorised to do work but did it in a way in which the employer would not have authorised a. The employer is still vicariously liable here as the employer acted within the scope of their employment 3. Has the employee acted outside the scope of their employment

Question 31

Mohamud v Morrisons (Supermarkets) Plc [2016] UKSC 11

Answer 31

* Employee assaulted and verbally abused a customer outside the place of work * Held that he should still be considered vicariously liable.

Question 32

Rose v Plenty [1975] ICR 430

Answer 32

- Christian brothers followed - Within the course of employment - Did not act with authorisation from the defender

Question 33

Century insurance Co. V Northern Ireland Road Transport Board [1942] AC 509

Answer 33

- Similar circumstances to Kirby, however differing outcomes - Smoked at a petrol station - Explosion - Smoking WAS during the course of employment - Difference being that in Kirby the wrongdoer shouldn't have been in the area and therefore was not acting within the course of his employment

Question 34

Attorney General of the British Virgin Islands v Hartwell [2004]

Answer 34

* Acting on a personal vendetta makes it difficult to establish vicarious liability - No liability for Personal Vendettas

Question 35

Bernard v Attorney General of Jamaica [2004] UKPC 47

Answer 35

* A close connection between the employment and the activity can be made through purporting to be acting in the course of employment * No liability for frolics

Question 36

Kennedy v Cordia (Services) [2016]

Answer 36

* Employers have a duty of care to take reasonable steps to ensure safe working conditions

Question 37

Wilsons & Clyde Coal Ltd v English [1938] AC 57

Answer 37

* Employers cannot delegate their way out of their duty of care

Question 38

Davie v New Merton Baord Mills Ltd and Another Respondents [1959] 2 WLR 331

Answer 38

* No liability for a defective tool that was sourced from a reputable manufacturer and supplier

Question 39

McGregor v AAh Pharmaceuticals Ltd (1996)

Answer 39

* Employers have a duty to provide and implement a safe system of working.

Question 40

Wilson v Merry & Cunningham (1866-69)

Answer 40

* Duty to employ competent individuals

Question 41

Keen v Tayside Contracts 2003

Answer 41

* PTSD / ‘nervous shock’ - Asked to leave the scene of a serious car crash and was refused. - Preceded Hatton, which would later impose an obligation on employers to take reasonable steps to protect their employees mental health.

Question 42

Hatton v Sutherland [2004] 1 WLR 1089

Answer 42

* Employers have a duty of care to take reasonable steps to avoid inuring employees mental health * Employers are entitled to take what an employee says at face value and to assume that they can handle the normal pressures of the job HELD: The employee must show that there were reasonable steps that the employer did not take

Question 43

What is the consequence of harm suffered due to a defective product?

Answer 43

Strict liability.

Question 44

Who is the onus of proof on in product liability.

Answer 44

Consumer.

Question 45

Define defective as outlined in s 3(1) of the Consumer Protection Act 1987.

Answer 45

‘If the safety of the product s not such as persons generally are entitled to expect' – s. 3 (1).

Question 46

What additional factors are considered when determining whether a product is defective? (3).

Answer 46

1. The marketing 2. What can reasonably be expected to be done with the product 3. The time when the product was supplied.

Question 47

Who is liable for a defective product? (3).

Answer 47

1. The producer 2. Any person putting their name, trademark, or any other distinguishing features to the product, holding themselves out to be the producer of the product 3. The importer - Implied only because the Act is an integrated EU directive.

Question 48

What are the three exceptions to product liability?

Answer 48

1. If product itself is the only thing damaged 2. Property damaged is not for private use 3. Property damage must not exceed £275 (de minimus) - however this doesn't apply to injuries.

Question 49

Define producer. (3).

Answer 49

1. The manufacturer 2. The person who own or abstracted the product – s. 1 (2) (b) 3. The person who carried out the agricultural process – s. 1 (2) (c)

Question 50

What happens if one cannot identify a producer

Answer 50

A request can be made to the supplier to identify the producer.

Question 51

What is the condition when requesting a supplier to identify a producer, and the consequence for failing to do so?

Answer 51

* This request must be made within a reasonabe timeframe after the damage occurs – s. 2 (3) (b) * If the supplier fails to identify within a reasonable timeframe they are then liable

Question 52

Identify the 6 defences for a defective product.

Answer 52

1. That the defect is due to compliance with another legal obligation- s4(1)(a) 2. That the person being preceded against did not supply the product to others- s4(1)(b) 3. That the product was not supplied for a profit or in the course of business- s4(1)(c) 4. Subsequent defects- s4(1)(d) 5. That the nature of the defect meant that a producer would not be expected to discover it due to the state of scientific/ technological understanding at the time- s4(1)(e)- The ‘state of the art’ defence 6. That the defective product was a component of another, final, product and that the defect was attributable to the design of the final product or to compliance with the instruction of the producer of the final product- s4(1)(f

Question 53

A (and others) v National Blood Authority [2001]

Answer 53

Contaminated blood - Found liable

Question 54

B (a child) v McDonald’s Restaurants Ltd [2002]

Answer 54

Hot drink - It is reasonably contemplatable that a coffee will be hot - Principle of reasonable responsibility

Question 55

Worsley v Tamrands Ltd [1999]

Answer 55

* Tampons - Woman suffered toxic shock - Sufficient warning on the packaging - Principle of reasonable responsibility

Question 56

Abouzaid v Mothercare [2000]

Answer 56

* Sleeping bag - Latch broke and blinded a child

Question 57

What are the four contracts governed by the 2015 Act?

Answer 57

* Sales * Hire of goods * Hire-purchase agreements * Transfer of goods

Question 58

What are the two conditions for a contract to be made under the 2015 Act?

Answer 58

1. ‘The trader transfers or agrees to transfer ownership of goods to the consumer’ 2. ‘The consumer pays or agrees to the price’

Question 59

What does the 2015 Act imply into all sales contracts? (2).

Answer 59

* That the goods will match their description – s. 11(1) * That the quality of the goods is what the reasonable person would consider satisfactory – s. 9 (2).

Question 60

Consumer Rights Act 2015 s 10(1).

Answer 60

If the purchaser makes it known to the trader that the goods are for a particular purpose, then it is implied that the goods will be fit for that purpose.